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As we prepare to glean impressions from the Supreme Court’s oral arguments in the cases involving two for-profit corporations claiming a “religious liberty” exemption from the contraception coverage mandate of the Affordable Care Act, TNR’s Jeffrey Rosen raises a specter a lot bigger and scarier than the fate of the mandate:

Although there are technical differences between the two cases [Hobby Lobby and Conestega Woods], both will force the justices to confront the future balance between the First Amendment on one hand and anti-discrimination laws on the other. In particular, the justices will have to decide whether the logic of Citizens United—that individuals who organize themselves as for-profit corporations have the same First Amendment rights as natural persons—includes rights of religious freedom as well as free speech. The justices may find narrower grounds to decide all three cases, but taken to their logical conclusion, the claims of the religious business owners in all of them would mean the end of anti-discrimination laws as we know them.

To put it simply, if the Supremes agree for-profit corporations enjoy a self-selected religious liberty exemption from compliance with the law, they must either identify some limiting principle (e.g., limiting the exemption to “expressive activities” that involve actual free-speech issues), or pretty much kill anti-discrimination and “public accomodation” laws, presumably including the crucial sections of the Civil Rights Act of 1964.

Could that actually happen? Rosen thinks it’s possible:

The decisive vote…may come down to Anthony Kennedy, the justice who demonstrated a fierce libertarian hostility to the Affordable Care Act’s health care mandate and the author of Citizens United. In that case, he insisted on ruling broadly that corporations have the same free speech rights as natural persons. Now he has to confront the logical implications of his sweeping ruling and decide whether he is willing to jettison the entire structure of public accommodations and anti-discrimination laws, as well as the Obamacare contraception mandate in the process.

Well, that would be a capstone to Kennedy’s career, all right—unless he hangs around long enough to write an opinion overturning Roe v. Wade.

Ed Kilgore
is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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